State v. Charles, (AC 21771).

• Decision Date: 22 July 2003
• Docket Number: (AC 21771).
• Citation: 78 Conn. App. 125,826 A.2d 1172
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. BENJAMIN CHARLES III

78 Conn. App. 125

826 A.2d 1172

STATE OF CONNECTICUT v. BENJAMIN CHARLES III

(AC 21771).

Appellate Court of Connecticut.

Argued February 10, 2003.

Officially released July 22, 2003.

Flynn, Bishop and West, Js.

D. Kirt Westfall, for the appellant (defendant).

Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Laura DeLeo-Denslow, former assistant state's attorney, for the appellee (state).

Opinion

BISHOP, J.

The defendant, Benjamin Charles III, appeals from the judgment of conviction, rendered after a jury trial, of criminal violation of a protective order in violation of General Statutes (Rev. to 1999) § 53a-110b, now § 53a-223.¹ On appeal, the defendant claims that (1) the court violated his due process rights by failing to charge the jury that intent was a necessary element of the crime of violating a protective order, (2) as applied to him, § 53a-110b, now § 53a-223, is unconstitutionally vague in that it fails to provide notice that inadvertent contact could form the basis for conviction and (3) the evidence was insufficient to support a conviction for criminal violation of a protective order. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. At the time of the events in this case, the defendant and the victim, Denell Battle, resided together. On February 14, 2000, there was an altercation between the defendant and the victim during which the defendant indicated that he was going to return the next day to retrieve his belongings from her apartment. On February 15, when the defendant returned, another altercation with the victim took place. The police arrived shortly thereafter and arrested the defendant, charging him with assault in the third degree in violation of General Statutes § 53a-61 (a) (1), assault in the third degree on a blind person² in violation of General Statutes § 53a-61a (a) and breach of the peace in violation of General Statutes (Rev. to 1999) § 53a-181 (a) (2).

On February 16, 2000, at the defendant's arraignment, the court issued a protective order forbidding the defendant from, inter alia, threatening or harassing the victim. The order explicitly allowed the defendant to contact the victim to arrange to retrieve his belongings from her home.

After his arrest, the defendant telephoned the victim twice, leaving messages on her voice mail on each occasion. In the first telephone call, the defendant, in language rife with expletives, told the victim, inter alia, that he wanted to be left alone and that he intended to come to her home to retrieve his belongings. In the subsequent call, the defendant apologized for the profanities he had used in reference to the victim in the first call. Additionally, he alluded to her possible criminal culpability concerning another matter. He also repeated his desire to be left alone and his desire for his belongings.

As a result of those telephone calls, the state charged the defendant, in a second information, with two counts of harassment in the second degree violation of General Statutes § 53a-183 (a) (3) and violation of a protective order in violation of § 53a-110b, now § 53a-223.³ At the jury trial on those charges, transcripts of the defendant's two telephone calls were offered into evidence. The jury found the defendant guilty of criminal violation of the protective order and acquitted him of the harassment count. This appeal followed.

I

The defendant claims that the court violated his constitutional right to due process by failing to charge the jury that intent was a necessary element of the crime of violation of a protective order. We disagree.

As a preliminary matter, although that claim was not raised at trial, we may consider it because it implicates a fundamental right. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). "An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. . . . This court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial. (Citations omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987).

For challenges to jury instructions, we employ the following standard of review. "[A] charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . We do not critically dissect the charge in order to discover possible inaccurate statements. . . . Rather, we see if [the jury instructions] gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues.. . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury. . . we will not view the instructions as improper. Even if instructions are found to be improper, we must further determine whether they have been prejudicial to the claiming party by adversely affecting the trial's outcome." (Internal quotation marks omitted.) Coniglio v. White, 72 Conn. App. 236, 241, 804 A.2d 990 (2002).

The court delivered, in relevant part, the following instructions on the state's burden of proof necessary to convict the defendant of violating a protective order:

"For you to find the defendant guilty of this charge, the state must prove the following elements:

"One, that a protective order was issued by the Superior Court in a case pending against the defendant. Two, that the case in which the order entered was one involving family violence. Three, and that the defendant violated said order after said order was entered by the court. . . .

"If you find that a protective order was issued by the Superior Court in the case pending against the defendant, which involves family violence, you must next determine whether the defendant violated the terms of this protective order after said order was entered by the court. The terms of a protective order prohibit, among other things, the defendant from threatening or harassing an alleged victim. It does not prohibit the defendant from contacting her. The state alleges that the defendant has violated said order by threatening or harassing the victim, Denell Battle.

"Harass means to trouble, worry or torment. Threaten means declaring an intention or determination to injure another person or his property by the commission of a threatened crime. A threat imparts the expectation of bodily harm to one's person or harms to one's property by the crime threatened, thereby inducing fear or apprehension.

"If you find that the state has proven beyond a reasonable doubt each of the elements of the crime of violation of a protective order, then you shall find the defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one of the elements, you should find the defendant not guilty."

At the core of the defendant's claim is the assertion that the violation of the protective order statute is a specific intent statute. In sum, the defendant claims that to be found guilty of violation of a protective order, the jury had to have found a specific intent on his part to commit the crime of threatening or harassment. Although the defendant does not challenge the court's instructions with respect to the threatening aspect, he does claim that the jury instructions concerning the order's proscription against harassment was inadequate. That claim is founded on the ground that the court did not instruct the jury that to be found guilty of violation of the protective order, the jury would have to conclude that the defendant was guilty of the crime of harassment.

We previously have rejected the claim advanced by the defendant. In State v. Martino, 61 Conn. App. 118, 128, 762 A.2d 6 (2000), we held that no specific intent to harass need be proven to warrant a conviction for violation of a protective order. Having declined to adopt the argument that criminal responsibility for the violation of a protective order requires specific intent, we have not, nevertheless, held that the statute is one of strict liability. Rather, we believe that it is a general intent statute, requiring proof that one charged with its violation intended to perform the activities that constituted a violation of the protection order.

"General intent is the term used to define the requisite mens rea for a crime that has no stated mens rea; the term refers to whether a defendant intended deliberate, conscious or purposeful action, as opposed to causing a prohibited result through accident, mistake, carelessness, or absent-mindedness. Where a particular crime requires only a showing of general intent, the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts." (Internal quotation marks omitted.) 21 Am. Jur. 2d, Criminal Law § 127 (1998).

"It is well established that [t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any...